The Veterans Affairs Department is nearly out of options now in punishing the four senior executives accused of creating an appearance of misconduct with the agency’s relocation program, despite harsh criticism from some members of Congress that the reprimands didn’t go far enough.
The VA can’t do much more, given that the Merit Systems Protection Board overturned punishments for two of the executives, said William Wiley, an attorney and former chief counsel to the chairman of MSPB and now co-founder of the Federal Law Training Group. And the employees themselves have few options to appeal.
“The problem with the VA is that anything short of removal is not going to be seen as enough by those who are upset by what happened,” he said.
Three of the four senior executives have or will likely receive reprimands, the lightest of the three kinds of disciplinary punishments agency management can issue, Wiley said. VA already issued the reprimand for Beth McCoy, the director of field operations.
VA Deputy Secretary Sloan Gibson also proposed reprimands for Kimberly Graves and Diana Rubens. Both employees can then defend themselves by filing legal briefs or affidavits from co-workers, Wiley said. The VA will then issue a final decision based on the employee’s response and the original proposal, he said.
The reprimands won’t do severe harm to the executives’ records now but could mean trouble for them later if their conduct or performance is called into question again, Wiley said.
“It’s a statement that A, says you’ve engaged in misconduct, and B, says ‘Don’t do it again.’ That’s all it says. The place it comes into play though, is if there’s a second act of misconduct,” he said.
Both women could also receive a 10 percent reduction. If sustained, Graves and Rubens can ask that the secretary review their punishments, but they cannot appeal to MSPB again.
Gibson also proposed a 15-day suspension, which is the minimum penalty for senior executives by law, for VBA Acting Undersecretary for Benefits Danny Pummill.
Pummill can appeal his suspension to MSPB if he chooses.
“Congress was afraid that if they allowed political overlords to abuse the SESers, they would just suspend them 5 days this month, 10 days next month, etc., and [would] never have to defend it outside of the agency,” Wiley said. “By mandating a minimum 15-day suspension for SESers, that means that any penalty other than a reprimand — any suspension, any loss of money — the employee has the right to file with MSPB.”
Trouble with the IG
The VA’s criticism of its own inspector general has often been at the center of some of these recent disciplinary cases.
But VA leaders insist: confirming the department’s nominee to be its permanent inspector general will help.
Both Senate Homeland Security and Governmental Affairs and Veterans Affairs Committees cleared the VA’s nominee, Michael Missal. It now sits with Majority Leader Mitch McConnell (R-Ky.) to bring Missal’s pending nomination to the Senate floor for a vote.
Jim Taylor, a former deputy inspector general for the Homeland Security Department, said having a permanent inspector general does make a difference at an agency. A Senate-confirmed, presidentially appointed IG typically comes to the agency from outside of the federal community and has a broader, more independent view of the agency, he said.
The auditors and staff members within the OIG are career employees, who often have years of federal experience and lack the same view as the independent inspector general.
“When you don’t have an IG, you have to be constantly concerned that you are exerting independence, that you’re not getting too close to the organization,” Taylor said. “You’re not paranoid, but you’re always conscious of the fact that you have to maintain independence.”
Gibson has referenced his disappointments with the IG on numerous occasions. He took issue with an IG report on the Veterans Crisis Hotline, where he said auditors based their findings on old information.
And he previously said the OIG’s disciplinary reviews simply take too long.
“The independent review process that the inspectors general have was not set up to be quick,” Taylor said.
The procedures and processes that IGs must follow when doing an audit or personnel investigation are there for a reason, Taylor added.
“You’re never fast enough for the committee chairs,” he said. “The committees want to have hearings, they want to move forward [and] they want to get an issue while it’s hot, for a lot of legitimate oversight reasons and occasionally for political reasons. They have their own agenda, and their agenda doesn’t often give enough time for the inspector general to conduct a full-blown audit.”